It may not please the media, but the Morrison government looks set to offer up a minimalist response to the uproar over press freedom in the wake of last year’s raids on the ABC’s Sydney headquarters and the home of News Corp journalist Annika Smethurst.
The June raids were triggered by stories that embarrassed the federal government. In the ABC’s case, it was the 2017 “Afghan Files” by journalists Dan Oakes and Samuel Clark, which revealed possible war crimes by Australian special forces; in News Corp’s case, it was plans to allow the Australian Signals Directorate to spy on Australians for the first time. Except by the government, both were hailed as classic examples of public interest journalism.
Amid the uproar, the federal attorney-general, Christian Porter, asked the government-controlled parliamentary joint committee on intelligence and security (PJCIS) to investigate the impact of a raft of national security legislation on press freedom, and make recommendations on any reform of laws governing the way journalists and media organisations interacted with law enforcement and intelligence agencies.
The committee had its reporting deadline extended three times – from October to November, then from November to December, and finally from December until “early in the new year” – before the pandemic struck. The committee is now hoping to report next month.
A proposal from the Right to Know coalition – encompassing the ABC, News Corp, Nine Entertainment, Seven West Media and other organisations, including the journalists’ union – made three key requests of the PJCIS. They were the right for media organisations to go before an independent third party at the level of a judge, to contest the application for warrants; exemptions for journalists from laws that would put them in jail for doing their jobs; and adequate protections for public-sector whistleblowers, which were the subject of a 2016 review by Philip Moss, the recommendations of which have been ignored by the government.
From the outset, there were criticisms that the PJCIS, subject to strict enabling legislation and chaired by conservative Liberal backbencher and former SAS officer Andrew Hastie, was the wrong body to conduct an inquiry into press freedom. Right to Know urged the committee to take a broad approach but as shadow attorney-general Mark Dreyfus, a member of the committee, told Sky News last August: “The question of press freedom, the question of the public’s right to know, is a much, much broader question than simply national security issues. So, unfortunately, this committee is only going to be able to look at a part of the problem.”
The PJCIS excludes any members of the parliamentary crossbench, so the Greens pushed successfully to set up a parallel inquiry by the senate’s environment and communications references committee. The inquiry is chaired by the party’s South Australian senator, Sarah Hanson-Young, who this week told The Saturday Paper the PJCIS was tantamount to “the government inquiring into itself … The culture of this committee is subordinate to the government of the day. It just is.”
She suspects the inquiry is running late as part of a deliberate delaying tactic: “The longer it is since people were shocked at the raids on the ABC, the less people will care. I think that’s part of the government’s strategy.”
The senate inquiry held a public hearing on Wednesday, including fresh evidence from members of the Right to Know coalition. News Corp’s Campbell Reid opened by telling the committee that since last year’s raids “a lot has happened and very little has changed”. While the government’s prosecution of Smethurst failed after News Corp challenged the warrants in the High Court, and the government dropped proceedings against the ABC’s Samuel Clark, Dan Oakes is still facing potential charges, and possible jail time, after the Australian Federal Police handed a brief of evidence to the Commonwealth director of public prosecutions. That brief is still on the attorney-general’s desk, awaiting his approval to initiate proceedings. Porter is taking his time – six weeks and counting.
In September 2018, Clark and Oakes had received a letter from the AFP saying they were suspected of an offence under section 79(6) of the Crimes Act, which prohibited receipt of prescribed information. That legislation was replaced in mid-2018 by a new secrecy offence prohibiting “dealing” with official information, allowing for a defence of public interest journalism.
The Saturday Paper understands there are deep divisions between the government members of the PJCIS, who range from the Victorian libertarian Tim Wilson – who declared early on he would be the “strongest advocate” for a free press and had “enormous sympathy” for the media’s push for contestable warrants – and conservative hardliners such as Tasmanian Eric Abetz and the Queensland Liberal National Party’s Amanda Stoker.
The South Australian senator David Fawcett, a former army officer and test pilot, sits somewhere between those extremes and is said to have engaged constructively with the evidence. He is also a member of the senate committee that held hearings this week, and so gave an indication of the government’s thinking on potential law reform.
Earlier this year, in a supplementary submission to the PJCIS, the Department of Home Affairs and AFP proposed a “notice to produce” regime as a possible alternative to broad search warrants. Such a system harks back to the voluntary “D Notices” that existed during the decades of the Cold War, under which media consulted agencies before publishing.
The notice regime has been rejected by the Right to Know coalition, partly because it is light on detail, partly because journalists could self-incriminate, and partly because it is an addition to the AFP’s existing power to obtain a warrant rather than a substitution for it.
In Wednesday’s hearing, Senator Fawcett asked for some industry feedback on this system, proposing “there would be a strong defence, or even exemption, to that receipt of prescribed information, where a journalist voluntarily came forward and said to the agency: ‘I’ve been given this, I’d like to publish the story. What should be redacted?’ … Would that not address the root cause of the issue that you have here around the notice to produce?”
The answer, from the media executives present, was a resounding “no”. The ABC’s general counsel, Constance Carnabuci, responded that Right to Know had not been able to identify a single other foreign jurisdiction that used such a regime. “Even in Hong Kong, which I’ve had cause to look at recently, they have contestable warrants, and they have in the basic law recognition of journalistic privilege … Secondly, if such a ‘notice to produce’ regime were enshrined, it would be a voluntary option … it would not be a compulsory path, which means, like the sword of Damocles, the old warrant regime would remain.”
Fawcett kept coming back to the proposal, however, asking whether a voluntary “notice to produce” regime could be used as a defence to a breach of official secrecy provisions – if it could “provide some comfort to media organisations that a journalist could do their role without being liable for prosecution for that crime of receipt?”
Hanson-Young believes that Fawcett’s line of questioning this week suggests government MPs are leaning towards a minimalist approach to reform, which will leave a broader push for press freedom up to the parliament. “I want to see a media freedom act, I want to see a proper definition of journalism,” says Hanson-Young, “but at the very least there should be contested warrants in law. It’ll all depend on what Senator Fawcett’s marching orders are from Peter Dutton, I suspect. The question is, does the prime minister really want to give Peter Dutton more power?”
Where Labor lands will be key. In an interview after the prosecution of Annika Smethurst was dropped, Mark Dreyfus admitted that the PJCIS had been too slow to report and said it was “very disappointing” that the submission from the Department of Home Affairs and the Attorney-General’s Department did not accept there was a need for legislative change to guarantee press freedom in Australia.
“We urgently need to reshape the law in our country, so journalists can’t be prosecuted simply for doing their job,” Dreyfus said. “It is a massive embarrassment to the government that the raid conducted on Annika Smethurst’s home was unlawful.”
Dreyfus pointed to Prime Minister Scott Morrison’s own comments straight after the raid, in which he said “it never troubles me that our laws are being upheld”.
He asked why Morrison had not addressed the High Court’s decision, which left egg on the government’s face. “In fact, he said nothing about that decision of the High Court, and he’s said nothing about Annika Smethurst getting let off. This is an incredibly authoritarian government. This is a government that is committed to secrecy. Morrison is the king of secrecy – this is an ‘on-water matter’, that’s a ‘bubble question’, or ‘I’ve answered that’ when he hasn’t.”
Last week, Annika Smethurst announced she would take a sabbatical from journalism. “Despite tremendous support from friends, family and News Corp, the stress and exposure triggered by the police raid on my home has taken a heavy toll,” she said. “After eight years as a press gallery journalist, I am looking forward to taking a bit of a break and spending more time with those people that stood by me.”
In an editorial announcing the decision, The Sunday Telegraph said: “Governments of all levels in Australia have for many years been steadily eroding journalists’ right to investigate and report on sensitive material, particularly on areas of defence and national security. That should make us all uncomfortable.”
The recommendations from the PJCIS will tell us the degree to which the government is uncomfortable, too.
This article was first published in the print edition of The Saturday Paper on August 15, 2020 as "Press run for more options".
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